What Is Deemed Consent? Do You Have The Right To Refuse To Take A Blood Or Breathalyzer Test
Part 3 Of 3
“Shall” vs. “May”
When the bill was drafted that became law later on as Section 724.015, the words were very important. According to the Code Construction Act, the use of certain words by the legislature leaves no doubt that using the term “shall” means the required duty of the officer, I.e. “the officer shall inform.” The reason why we know this is because Section 311.016 of the Act states that the following constructions are applicable unless the context where the phrase or word appears requires that a different construction be made or the statute expressly provides a different construction:
1. “May” grants a power or permission or creates discretionary authority.
2. “Shall” imposes a duty.
Therefore, the use of “shall” (duty) by the Legislator rather than “may” (discretionary) does not leave a doubt that both the oral and written warnings may be given meaningfully before a blood or breath test may be made. With this understanding, our law doesn’t allow for discretion regarding the need for providing the totality of our two warnings. This same lesson can be applied to “and” which can be distinguished from “or.” Therefore, without a proper “statutory warning” given, there is no penalty for refusals and no deemed consent.
You are still able to refuse a test that is under deemed consent even if you have been given a statutory warning.
Interestingly enough, just because you are provided with the proper statutory warning, that doesn’t mean the driver is not able to refuse or decline submitting to the test. The driver indeed can! However, when that is done, then the State can impose two particularized and limited penalties: a driver’s license suspension and informing the jury about the failure of the driver to submit to testing.
The latter penalty’s purpose is to allow the State to infer the “guilty mind” state to a jury, ie. the driver believed he was guilty of a DWI and was attempting to hide evidence pointing to his guilt. As regards to “guilty mind,” it is important that all refusals not be admitted into evidence. The admissibility will depend on potential harm and relevance.
For example, it can be argued that the refusal of a driver, based on her or his desire to have their lawyer’s advice before refusing or agreeing, does not have any relevance unless the driver is first informed by the officer that for this purpose does not have a right to an attorney. That is true since the Texas court has been held for a long time that there is no inference of guilt that may occur by the rights being invocated, eg. to remain silent or have assistance from a lawyer.
In terms of the driver’s right to refuse, this can be found in Section 724.013, which states:
Exception for the Prohibition on Taking Specimen if the Individual Refuses. Except as Section 724.012(b) provides, a specimen might not be taken if the individual refuses to submit to take a specimen that a peace officer designates.
Unfortunately, nearly right that a citizen has will have exceptions that are attached to them, and an exception is not the “right to refuse.” For example, an officer, under really limited circumstances, may take blood forcibly if there are any exigent circumstances for doing so (the substances that cause impairment are starting to dissipate within the driver’s body) and there isn’t enough time for getting a search warrant secured.
Search Warrants Should Not Be And Are Not Automatic
Another example is a search warrant that is obtained that authorizes the taking of blood by force. A search warrant is a type of judicial order that is based on an affidavit, i.e. a sworn narrative of the events that are provided by the officer to a judge for establishing for probable cause that a DWI offense has been committed by the driver and that the controlled substance, drug, or alcohol is evidence of this crime, is inside the individual’s blood and is in the process of dissipating.
A search warrant is not intended to be issued automatically upon the request of an officer. Just because a warrant is requested by an office doesn’t automatically mean that it should be granted by a judge. If upon review of the affidavit of the officer, determine that the facts are insufficient for establishing probable cause (i.e. facts that show the DWI offense was probably committed by the driver and not just a suspicion or hunch or a simple conclusion), the warrant request should be denied.
Said in a different way, it is not automatic to get a search warrant since it is conditioned based on an affidavit that is factually sufficient and shows probable cause that is provided to a detached and neutral judge. Finally, when a warrant is issued, it is important or a driver to know that she or he can be made to forcibly provide blood samples as long as reasonable and limited force is used by the officer.
No deemed consent for a urine test being taken, but there is for blood and breath conditions to be met.
To conclude, no deemed consent exists to take a urine test. There is also no deemed consent for a blood or breath test unless these 3 conditions are met:
- A driver is under arrest
- The driver was provided with an oral statutory warning
- The driver was provided a written statutory warning was given, and the warnings took place
before a request is made for a test.
Furthermore, just because those 3 conditions have been met, that doesn’t mean a driver must agree to take the sample specimens. In fact, many argue it is better to refuse the test since breath test machines have not been warranted to be fit for breath testing by their manufacturers, and, since the breath that is provided isn’t preserved for checking subsequently of the machine’s reliability and accuracy.
This same logic applies to a blood sample being taken. That is because there are no guarantees that it will be conducted in a sanitary place, by people who are not trained properly to take the sample and analyze it as well. Finally, knowing about these blood and breath testing problems, some people argue that the best evidence for sobriety is when testing is refused by the driver since there are no risks that an infection or erroneous test evidence may occur.
Give Jim a call today and let him give you a free consultation so that you can get the help that you need. You can contact Jim for your free consultation! Click here for the first article in this series.